Citation Nr: 1012470
Decision Date: 04/02/10 Archive Date: 04/14/10
DOCKET NO. 08-28 748 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco,
Texas
THE ISSUES
1. Entitlement to an increased disability evaluation for
lumbar strain, currently evaluated as 20 percent disabling.
2. Entitlement to an increased disability evaluation for
left ankle sprain, currently evaluated as 10 percent
disabling.
3. Entitlement to service connection for an acquired
psychiatric disability, to include PTSD.
4. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
The appellant and his wife
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Counsel
INTRODUCTION
The Veteran had service from July 1992 to July 2001.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2008 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas.
Unfortunately, further development of the evidence is
required before the Board can adjudicate the Veteran's
pending claims of entitlement to service connection for
hypertension and for psychiatric disability. So,
regrettably, this claim is being remanded to the RO via the
Appeals Management Center (AMC). VA will notify him if
further action is required on his part.
FINDINGS OF FACT
1. Throughout the rating period on appeal, the Veteran's
lumbar spine strain is manifested by subjective complaints
of pain on motion, but without demonstration by competent
clinical evidence of marked limitation of motion or
neurological impairment.
2. The Veteran's service-connected left ankle sprain is not
productive of marked limitation of motion; there is also no
evidence of ankylosis of the ankle, ankylosis of the
subastragalar or tarsal joint, or malunion of the os calcis
or astragalus.
CONCLUSIONS OF LAW
1. The criteria for a disability evaluation in excess of
20 percent for lumbar spine strain have not been met.
38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R.
§§ 3.102, 3.159, 3.321, 4.1-4.14, 38 C.F.R. § 4.71a,
Diagnostic Codes 5235 - 5243; 4.124a, Diagnostic Codes 8520,
8620 (2009).
2. The criteria for an evaluation in excess of 10 percent
for left ankle sprain have not been met. 38 U.S.C.A.
§§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.59, 4.71a,
Diagnostic Code 5271 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
Notice
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2009);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
VCAA notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that
the claimant is expected to provide in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to
a claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006).
On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman holds that
the VCAA notice requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) apply to all five elements of a
"service connection" claim. As previously defined by the
courts, those five elements include: (1) veteran status;
(2) existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence
presented with the claim and to provide the claimant with
notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for
the award of benefits will be assigned if service connection
is awarded.
VA issued a VCAA notice letters, dated in February 2007 and
March 2007, from the agency of original jurisdiction (AOJ)
to the appellant. The letters explained the evidence
necessary to substantiate the Veteran's claims for increased
disability evaluations and service connection, as well as
the legal criteria for entitlement to such benefits. The
letters also informed him of his and VA's respective duties
for obtaining evidence.
In addition, these letters from VA explained how a
disability rating is determined for a service-connected
disorder and the basis for determining an effective date
upon the grant of any benefit sought, in compliance with
Dingess/Hartman.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the
United States Court of Appeals for Veterans Claims held, in
part, that VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision
on a claim for VA benefits. In Pelegrini v. Principi, 18
Vet. App. 112 (2004), the United States Court of Appeals for
Veterans Claims held, in part, that VCAA notice, as required
by 38 U.S.C.A. § 5103(a), must be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits. In
the present case, the unfavorable AOJ decision that is the
basis of this appeal was decided after the issuance of an
initial, appropriate VCAA notice. As such, there was no
defect with respect to timing of the VCAA notice.
The appellant has been provided with every opportunity to
submit evidence and argument in support of his claims and to
respond to VA notice. Further, the Board finds that the
purpose behind the notice requirement has been satisfied
because the appellant has been afforded a meaningful
opportunity to participate effectively in the processing of
his claims.
Duty to Assist
With regard to the duty to assist, the claims file contains
the Veteran's service treatment records and reports of VA
and private post-service treatment and examination.
Additionally, the claims file contains the Veteran's own
statements in support of his claims. The Board has
carefully reviewed such statements and concludes that he has
not identified further evidence not already of record. The
Board has also reviewed the medical records for references
to additional treatment reports not of record, but has found
nothing to suggest that there is any outstanding evidence
with respect to the Veteran's claims.
The record shows that the Veteran has been examined by VA in
connection with his increased rating claims. The Board has
reviewed the examination reports, and finds that they are
adequate for the purpose of evaluating the disorders at
issue.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the Veteran in developing the facts
pertinent to his claims. Essentially, all available
evidence that could substantiate the claim has been
obtained. There is no indication in the file that there are
additional relevant records that have not yet been obtained.
Entitlement to Increased Disability Evaluations
Legal Criteria
Disability ratings are determined by evaluating the extent
to which a veteran's service-connected disability adversely
affects his or her ability to function under the ordinary
conditions of daily life, including employment, by comparing
his or her symptomatology with the criteria set forth in the
Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. If two ratings are potentially applicable,
the higher rating will be assigned if the disability more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. See 38 C.F.R.
§ 4.7. Any reasonable doubt regarding the degree of
disability will be resolved in favor of the veteran. See
38 C.F.R. § 4.3.
A disability rating may require re-evaluation in accordance
with changes in a veteran's condition. Thus, it is
essential that the disability be considered in the context
of the entire recorded history when determining the level of
current impairment. See 38 C.F.R. § 4.1. See also
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Nevertheless, where, as here, the veteran is appealing the
rating for an already established service-connected
condition, his present level of disability is of primary
concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The Board notes that staged ratings are appropriate for an
increased-rating claim when the factual findings show
distinct time periods where the service-connected disability
exhibits symptoms that would warrant different ratings.
Hart v. Mansfield, 21 Vet App. 505 (2007).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection of parts of the
musculoskeletal system, to perform the normal working
movements of the body with normal excursion, strength,
speed, coordination, and endurance. The functional loss may
be due to absence of part, or all, of the necessary bones,
joints, and muscles, or associated structures, or to
deformity, adhesions, defective innervation, or other
pathology, or it may be due to pain, supported by adequate
pathology and evidenced by visible behavior of the claimant
undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. See 38 C.F.R.
§§ 4.40, 4.45, and 4.59 (2009). See also DeLuca v. Brown,
8 Vet. App. 202, 206-07 (1995).
Analysis
Lumbar Spine Strain
The diagnostic code criteria pertinent to rating spinal
disabilities in general were revised effective September 26,
2003 (as codified in relevant part at 38 C.F.R. § 4.71,
Diagnostic Codes 5237 through 5243). Under these relevant
provisions, a 10 percent rating is warranted for forward
flexion of the thoracolumbar spine greater than 60 degrees
but not greater than 85 degrees; or, combined range of
motion of the thoracolumbar spine greater than 120 degrees
but not greater than 235 degrees; or, muscle spasm,
guarding, or localized tenderness not resulting in abnormal
gait or abnormal spinal contour; or, vertebral body fracture
with loss of 50 percent or more of the height.
A 20 percent rating is warranted for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal
gait or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis.
A 30 percent disability evaluation is warranted for forward
flexion of the cervical spine to 15 degrees or less or
favorable ankylosis of the entire cervical spine. A 40
percent evaluation is warranted for forward flexion of the
thoracolumbar spine 30 degrees or less, or favorable
ankylosis of the entire thoracolumbar spine. Unfavorable
ankylosis of the entire thoracolumbar spine warrants a 50
percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for
lumbosacral strain, Diagnostic Code 5242 for degenerative
arthritis of the spine, and Diagnostic Code 5243 for
intervertebral disc syndrome.
In addition to evaluating intervertebral disc syndrome
(Diagnostic Code 5243) under the general rating formula for
diseases and injuries of the spine outlined above, it may
also be rated based on incapacitating episodes, depending on
whichever method results in the higher evaluation when all
service-connected disabilities are combined under 38 C.F.R.
§ 4.25. Note (1) defines an "incapacitating episode" as "a
period of acute signs and symptoms due to intervertebral
disc syndrome that requires bed rest prescribed by a
physician and treatment by a physician." "Chronic
orthopedic and neurologic manifestations" were defined as
"orthopedic and neurologic signs and symptoms resulting from
intervertebral disc syndrome that are present constantly, or
nearly so."
There is a preponderance of the competent clinical evidence
of record against an evaluation in excess of 20 percent for
the disability at issue based on incapacitating episodes of
intervertebral disc syndrome because the Veteran has not
experienced any incapacitating episodes. Indeed, the record
does not demonstrate any incapacitating episodes requiring
bed rest by a physician and treatment by a physician.
Similarly, the competent clinical evidence of record is
against an evaluation in excess of 20 percent for the
disability at issue based on the general rating formula for
disease or injury of the spine. Indeed, the Veteran's
lumbar spine strain was productive of no worse than forward
flexion to 90 degrees at his April 2007 VA examination;
extension was to 30 degrees and lateral rotation and flexion
were to 30 degrees. At his January 2009 VA examination, he
had forward flexion to 50 degrees, with extension to 20
degrees. Likewise, there was no finding of favorable or
unfavorable ankylosis of the entire thoracolumbar spine, and
the Board does not find that the Veteran's complaints of
pain upon motion is equivalent to severe limitation of
motion of the lumbar spine or ankylosis. Thus, applying the
facts to the criteria set forth above, the Veteran remains
entitled to no more than a 20 percent evaluation for his
service-connected lumbar spine strain under the General
Rating Formula for Diseases and Injuries of the Spine.
Furthermore, the Board acknowledges consideration of
additional functional impairment due to factors such as
pain, weakness and fatigability. See 38 C.F.R. §§ 4.40 and
4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).
Regarding range of motion, the Veteran's VA examination
reports indicated that he had pain upon range of motion
testing, but that there was no evidence of incoordination,
weakness, or fatigability. The Veteran has normal deep
tendon reflexes bilaterally throughout the rating periods on
appeal. And, to the extent that the Veteran claims that his
pain upon motion is the equivalent of limited motion, the
Board finds that the Veteran's subjective complaints of pain
have been contemplated in the current rating assignment, as
the Veteran's current rating is based on his objectively
demonstrated reduced motion. See Lichtenfels v. Derwinski,
1 Vet. App. 484, 488 (1991). The overall evidence reveals a
disability picture most approximating a 20 percent
evaluation, but no higher, even with consideration of
whether there was additional functional impairment due to
DeLuca factors. Thus, based on the analysis of those
criteria set forth above, the Veteran remains entitled to no
more than a 20 percent evaluation for the orthopedic
manifestations of his service-connected lumbar spine strain.
With consideration of the provisions of Note (1) of the
General Rating Formula for Diseases and Injuries of the
Spine, the Board notes that there is no objective evidence
of record for the entire rating period on appeal which
demonstrates that the Veteran experiences any neurologic
symptomatology. The medical evidence demonstrates that the
Veteran's neurologic evaluation at each of his VA
examinations is negative, and does not allow for a finding
of neurologic manifestations of the Veteran's service-
connected lumbar spine strain. Thus, he is not entitled to
a separate, compensable rating under Diagnostic Code 8520,
8521, 8524, 8525, or 8526 for the neurologic manifestations
of the disability at issue.
Finally, the evidence does not reflect that the disability
at issue caused marked interference with employment (i.e.,
beyond that already contemplated in the assigned
evaluation), or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. Hence, the
Board does not have to refer this case to the Director of
Compensation and Pension Service for extra-schedular
consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash
v. Brown, 8 Vet. App. 218, 227 (1995).
Left Ankle Sprain
Presently, the Veteran's left ankle sprain is rated as 10
percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic
Code 5271. Under Diagnostic Code 5271, a 10 percent
disability evaluation is assigned where there is moderate
limitation of motion of the ankle. See 38 C.F.R. § 4.71a,
Diagnostic Code 5271. A 20 percent disability evaluation is
warranted where there is marked limitation of the ankle.
Id.
Upon reviewing the rating criteria in relation to the
evidence for consideration, the Board finds that the
Veteran's disability picture is most consistent with the
currently assigned 10 percent disability evaluation, and
that an increased disability evaluation is not warranted.
The objective clinical evidence of record does not show that
the Veteran has marked limitation of motion of his left
ankle. Significantly, the Veteran's most recent VA
examination, in January 2009, showed that the Veteran had
range of motion of his left ankle from zero (0) to 10
degrees in dorsiflexion and from zero (0) to 20 degrees in
plantar flexion, without complaint of pain. Inversion was
to 15 and eversion was to 10 degrees. At the earlier, April
2007 VA examination, range of motion was to 20 degrees in
dorsiflexion, 35 degrees in plantar flexion, inversion to 30
degrees, and eversion was to 20 degrees. See 38 C.F.R.
§ 4.71, Plate II (full range of motion for the ankles is
zero (0) to 20 degrees dorsiflexion and zero (0) to 45
degrees plantar flexion). At both examinations, there was
no ankylosis, atrophy of the muscles, or unstable ligaments;
his ankle strain was described as moderate. Therefore, the
Board finds that the Veteran's left ankle symptomatology
most closely fits within the criteria for the currently
assigned 10 percent disability evaluation.
The Board also considered whether the Veteran may be
entitled to a higher rating under other potentially
applicable Diagnostic Codes. With regard to the criteria
under Diagnostic Code 5270, there is no evidence of
ankylosis of the Veteran's left ankle. Likewise, under
Diagnostic Code 5272, is no evidence of ankylosis of the
Veteran's subastragalar or tarsal joint. Further, the
findings do not warrant an evaluation under Diagnostic Codes
5273 and 5274, as there is no evidence of malunion of the os
calcis or astragalus, nor is there evidence of an
astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes
5273 and 5274. As such, the Board does not find that the
medical evidence supports a schedular rating in excess of 10
percent for the left ankle.
In concluding that the Veteran is not entitled to a
disability evaluation in excess of 10 percent for his left
ankle sprain, the Board has also considered whether the
Veteran is entitled to a higher disability evaluation on the
basis of functional loss due to pain pursuant to DeLuca v.
Brown, 8 Vet. App. 202 (1995). While the Veteran reports
pain, the Veteran does not experience a significant loss of
range of motion due to pain, fatigue, weakness, or lack of
endurance due to repetitive use of the joint. Further, the
current 10 percent disability evaluation contemplates the
Veteran's complaints of pain, as well as any limitation of
motion due to pain. There is no objective indication that
the Veteran's symptoms result in any additional functional
limitation to a degree that would support a rating in excess
of the current disability rating for his left ankle sprain.
Finally, the evidence does not reflect that the disability
at issue caused marked interference with employment (i.e.,
beyond that already contemplated in the assigned
evaluation), or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. Hence, the
Board does not have to refer this case to the Director of
Compensation and Pension Service for extra-schedular
consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash
v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
An evaluation in excess of 20 percent for lumbar spine
strain is denied.
The claim for a rating higher than 10 percent for left ankle
sprain is denied.
REMAND
The Board notes that the Veteran's VA medical records
indicate that he has been diagnosed with hypertension. In
addition, service treatment records indicate that the
Veteran had a history of intermittent hypertension.
Nonetheless, the Veteran has not been afforded a VA
examination that addresses the nature and etiology of the
Veteran's claimed hypertension.
As to the psychiatric disability claim, the available
service treatment records do not refer to psychiatric
complaints or findings, and there is no post-service
evidence of psychiatric disability until many years after
service. Nevertheless, the Veteran contends, including in
testimony, that he experienced psychiatric problems since
service.
Given the above, and as the evidentiary threshold to warrant
a VA examination addressing the etiology of a disorder is
rather low, the Board finds that additional clinical
assessment and medical opinion is needed to adequately
address the Veteran's claims of entitlement to service
connection for hypertension and for psychiatric disability.
See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).
See also 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4)
(VA has an affirmative duty to obtain an examination of the
claimant at VA health-care facilities if the evidence of
record does not contain adequate evidence to decide a
claim).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for an
appropriate VA examination to determine
the nature, etiology and severity of any
current hypertension. The examiner is
then requested to offer an opinion as to
whether it is at least as likely as not
(i.e., 50-percent or greater
probability) that the Veteran currently
has hypertension that is related to his
service in the military.
To assist in making this important
determination, have the designated
examiner review the relevant evidence in
the claims file, including the Veteran's
service treatment and personnel records.
The requested determination should also
consider the Veteran's medical,
occupational, and recreational history
prior to, during, and since his military
service. The medical basis of the
examiner's opinion should be fully
explained with reference to pertinent
evidence in the record. If an opinion
cannot be provided without resorting to
speculation, please indicate this in the
report. The examiner is asked to
indicate whether or not he or she has
reviewed the claims folder.
2. The RO should arrange for a VA
psychiatric examination of the Veteran
to determine the nature and etiology of
any current psychiatric disorders. All
indicated studies, tests and evaluations
deemed necessary should be performed.
The examiner should report a multi-axial
diagnosis, identifying all current
psychiatric disorders. A diagnosis of
PTSD under DSM IV criteria should be
made or definitively ruled out. If PTSD
is diagnosed, the examiner should
identify the specific stressor(s)
supporting the diagnosis. If PTSD is
not diagnosed, the examiner should
explain why the diagnosis was not made.
With respect to any psychiatric disorder
other than PTSD identified, the examiner
should provide an opinion as to whether
it is at least as likely as not that the
disorder is etiologically related to
service.
The rationale for all opinions expressed
should be explained. The claims files
must be made available to the
psychiatrist for proper review of the
medical history.
3. Then, the RO should readjudicate the
claims remaining on appeal, with
application of all appropriate laws and
regulations, and consideration of all
additional information obtained since
issuance of the most recent supplemental
statement of the case, including
evidence obtained as a result of this
remand. If the claims on appeal remain
denied, the appellant and his
representative should be furnished a
SSOC and afforded a reasonable period of
time within which to respond thereto.
Thereafter, the case should be returned
to the Board, as appropriate.
The purpose of this remand is to further develop the record
and afford due process. The Board does not intimate any
opinion as to the merits of the case, either favorable or
unfavorable, at this time.
The appellant has the right to submit additional evidence
and argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or
by the United States Court of Appeals for Veterans Claims
for additional development or other appropriate action must
be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2009).
______________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs